Harsh Kumar, J. - (1.) Heard Shri Araf Khan and Shri Lihazur Rahman Khan learned counsel for the petitioner, Shri Kamlesh Kumar Tripathi, learned counsel for respondent no.2 and learned A.G.A. for State.
(2.) The petition for Habeas Corpus has been filed by petitioner Shahzad with following prayers :- "(I) Issue writ, Order or direction in the nature of MANDAMUS commanding the Respondent No.2 to produce the corpus of the Respondent No.3 before this Hon'ble Court and her custody be placed with the Petitioner. (II) Alternatively, issue Writ, Order or direction in the nature of MANDAMUS commanding the station officer-Navadi, District-Ghaziabad, to produce the corpus of the Respondent No.3 before this Hon'ble Court and her custody be placed with the Petitioner. (III) Pass such other and further orders which this Hon'ble Court may deem fit and proper in the fact of circumstances of the case. (IV) Award Costs."
(3.) The learned counsel for petitioner contended that the petitioner and respondent no.3 Varsha Saini are major and have made marriage on 15.12.2016 in accordance with customs, rites and rituals under Mohammedan Law and a Nikahnama, Annexure-1 was also prepared on the same day; that the petitioner and respondent no.3 preferred a joint Criminal Misc. Writ Petition No.60466 of 2016 before this court seeking protection for safety & security of their life and liberty, and obtained an order Annexure-2 by this court on 21.12.2016; that in compliance with order at A-2, the petitioner and respondent no.3 have got their marriage registered with the office of Sub-Registrar, Ghaziabad on 26.12.2016 and started leading their matrimonial life; that on 23.3.2017 the respondent no.2 who happens to be father of respondent no.3, lodged a F.I.R. at case crime no.79 of 2017 under Sections 363 and 366 I.P.C. in which the petitioner was arrested and respondent no.3 was forced to go with respondent no.2 despite her unwillingness; that on 28.3.2017 the respondent no.3 was medically examined for determination of her age and her radiological age was assessed as 17 years, as per radiological report at Annexure-3; that after being released on bail when the petitioner went to fetch respondent no.3, he was beaten and threatened, and the corpus is also being tortured by respondent no.2; that in High School marks sheet of corpus at CA-2 the date of birth of corpus Varsha Saini is mentioned as 5.11.2001, according to which she comes to 15 years 1 month and 10 days old at the time of marriage/Nikah with petitioner while as per radiological test she was 17 years old; that in cases of Idrish Mohd. vs. Memam and Another, 2000 10 SCC 333, Juhi Devi vs. State of Bihar and Others, 2005 13 SCC 376 as well as latest pronouncement dated 26.4.2018 in Civil Appeal No.4532 of 2018, Suhani & Another vs. State of U.P. and Others, the Apex Court has laid down settled principle of law to the effect that, in case of conflict of age of girl between academic certificate and radiological report, the age mentioned in radiological report will prevail over the date of birth mentioned in the High School certificate; that in the radiological report dated 28.3.2017 at Annexure-3 the approximate age of corpus has been determined as about 17 years and since there can be variation of two years, she is to be treated as 19 years old and major as on date of Nikah/marriage and is required to be released from custody of her father respondent no.2, and set free to go with the petitioner.;